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The Pemberton Mill collapse in 1860 bears a strong resemblance to a tragedy that occurred just a few month ago in Bangladesh. An eight-story garment factory on the outskirts of Dhaka collapsed killing over 1,000 people and injuring many more. The accident is blamed on substandard construction and poor enforcement safety regulations.

The 1862 Boston Almanac describes the Pemberton Mill accident: “The Pemberton Mills at Lawrence, Mass., through a defect in the cast-iron columns supporting the interior of the building, fall-in while nearly 800 operatives are at work, and bury many in the ruins. About four hours after the fall, a fire breaks out, and destroys those not extricated from the ruins. More than 115 people perish by the awful catastrophe, and 165 are more or less injured.”

While the United States has adopted building codes and worker safety regulations to prevent industrial accidents, they still occur with regularity in countries overseas. In many respects, the factories in Bangladesh and other poor countries are no different than those operating here during the first industrial age.

The April factory collapse and the public relations fallout have forced U.S. companies to reconsider the safety of their factories overseas and those used in their supply chains. Unfortunately, improving overseas working conditions is no easy task and involves a concerted effort by a number of different parties, including retailers, suppliers, factory owners and local governments.

A coalition of U.S. retailers, including Gap Inc. and Wal-Mart Stores, Inc., is reportedly close to a deal that would create a $50 million, five-year fund to improve safety conditions in Bangladesh garment factories. European retailers previously inked an agreement to improve factory safety, but most U.S. companies declined to join due to liability concerns.

As reported by the Wall Street Journal, the European pact involves labor groups, which would be empowered to bring disputes to a steering committee responsible for managing the safety program. Appeals would be subject to a final and binding arbitration process. Under the U.S. proposal, signatories could only be held liable if they fail to make promised financial contributions or continue to use unsafe manufacturing facilities. However, because labor organizations would not participate, it is unclear who would pursue violations.

If attempts to police their own industry fail, retailers may also be subject to additional federal regulations. The U.S. Senate Committee on Foreign Relations recently conducted hearings on labor issues in Bangladesh, particularly the responsibility of U.S. corporations for overseas working conditions.

Anthony Morangelli and Frank Ercole filed a class complaint in February 2010 in the U.S. District Court for the Eastern District of New York against Chemed Corp. and Roto-Rooter. Morangelli and Ercole were technicians employed the defendants. They alleged that they and all other technicians were paid on a commission basis but that the defendants failed to pay wages free and clear, made unlawful deductions and required the technicians to bear business expenses that should have been paid by the defendants.

Settlement Terms

On Sept. 13, 2013, Morangelli moved for preliminary approval of a settlement agreement with Roto-Rooter.

The agreement creates a settlement fund of $ 14,274,585. The fund will cover class members’ settlement awards, service payments, attorney fees and costs and administration fees and costs.

Judge Brian M. Cogan granted preliminary approval and agreed to the expansion of the previously certified federal class. “The Settlement Agreement provides relief for all members of the currently certified federal classes and expands the membership of those classes by including individuals who were hired in the certified States after the date that class notice was issued and before the date on which Defendants implemented new pay practices that impact the practices challenged by plaintiffs in this litigation. The Court has already ruled on the merits of Rule 23 class certification and decertification with respect to the Federal Class Members (see Morangelli v. Chemed Corp., 275 F.R.D. 99 (E.D.N.Y. 2011) and Morangelli v. Chemed Corp., 2013 U.S. Dist. LEXIS 14873 (E.D.N.Y. Feb. 4, 2013)). The expansion of the classes to include individuals hired by Defendants after class noticed issued but subject to the same practices is consistent with the Court’s prior certification decisions and the additional class members will receive notice, the opportunity to opt-out of the class and the opportunity to object to the settlement as part of the settlement. Accordingly, the addition of these class members in the settlement class is approved,” the judge wrote.

Class members are given until Nov. 21 to opt out of the settlement and/or object to the settlement. A fairness hearing is scheduled for Jan. 6.

Counsel

Brent E. Pelton of Pelton & Associates in New York and Lesley A. Tse and Michael J.D. Sweeney of Getman & Sweeney in New Paltz, N.Y., represent the class.

Jared I. Heller, Kerri A. Law and Robert N. Holtzman of Kramer, Levin, Naftalis & Frankel in New York represent Chemed and Roto-Rooter.

Evidence of a premises owner’s liability allowed for the otherwise untimely naming of a defendant who ended up at trial, and the evidence supports a jury’s award against it on lung cancer claims, but the liability must be split between the two entities, a Louisiana court held Sept. 16 (Alfred Watts and Rosa Lee Watts v. Georgia-Pacific Corp., et al., No. 2012 CA 0620, La. App., 1st Dist.;2013 La. App. LEXIS 1863).

Alfred Watts allegedly contracted both laryngeal and lung cancer and died of lung cancer after exposure while employed with Herbert Brothers at a Dow Chemical Co. facility in Plaquemine, La. Rose Lee Watts added Herbert as a defendant in August 2003, dismissed all other defendants and proceeded to trial. Hebert argued that Watts’ claim was prescribed, but the motion was denied with leave to file supervisory writs.

The jury found that Hebert was negligent and that the negligence was a substantial factor in the decedent’s death. The jury did not find the decedent, a cigarette smoker, negligent. The jury awarded $ 3,625,000, including $ 2.75 million on the lung cancer claim.

Prescription Issue

Judge James J. Best granted Hebert’s motion to stay the proceedings while the issue of prescription was under review. The First District Louisiana Court of Appeal granted Hebert’s writ in part and remanded so that Judge Best could consider and rule on the merits.

On remand, Judge Best found that Watts’ claim was not prescribed. Hebert appealed, arguing that the claims were prescribed, that judgment should have limited Hebert’s liability to its virile share and that the award on the survival action was excessive.

A panel of the First District said the evidence regarding the lack of safety measures at the Dow facility allows for a reasonable individual to conclude that Dow is liable under strict custodial liability.

Hebert complained that Watts pointed to Hebert as the sole liable party when she sought directed verdict but then argued that Dow’s liability prevented Hebert’s prescription defense, the panel said.

‘Irony’

“While we do see the irony of the changed positions Watts argued before the trial court, arguments of counsel are not evidence,” the panel said. Notably, Judge Best denied Watts’ motion for directed verdict, finding that sufficient evidence that other parties were at fault, the panel said. Since the evidence allows one to conclude that Dow was liable, a solidary relationship existed between Hebert and Dow and Dow’s timely inclusion in the action stayed the statute of limitations for naming Hebert, the panel said.

However, since the evidence supported Dow’s liability, Judge Best erred in not reducing the damages against Hebert by half, the panel said.

Excessiveness

The panel rejected Hebert’s challenge to the $ 2.75 million award on the lung cancer claim. Nothing in the record suggests that the jury abused its “vast discretion,” the panel said. The evidence shows that the decedent’s lung cancer caused him great pain and rendered him unable to walk, stand, eat or do anything for himself and that he required his daughters to feed him and diaper him, the panel said.

“Although the duration of his suffering from lung cancer was but a short period it is clear from the record that the evidence proved Alfred suffered intense and severe changes in his life after the lung cancer diagnosis,” the panel said.

Judge James E. Kuhn wrote for the court, joined by Judges John T. Pettigrew and J. Michael McDonald.

In May 2010, the HSE said asbestos dust was released during work to remove industrial boilers, pipework and a boiler house at an industrial site owned by Dairy Crest. The asbestos-containing material remained exposed until a cleanup operation began at the site two years later.

Dairy Crest and REWCO were prosecuted after the HSE noticed asbestos violations in the planning of the job and a lack of training for the workers. REWCO was hired to dismantle all of the fixed plant pipework and to assist in demolishing the boiler house. The HSE said REWCO removed the boilers at the site without taking steps to determine whether asbestos was present.

The HSE said Dairy Crest had previously completed a suitable survey for asbestos but failed to provide REWCO with the report. The HSE said three REWCO employees were exposed to asbestos during the boiler and pipework removal. An HSE investigation revealed widespread asbestos contamination.

Fines

The HSE said Dairy Crest pleaded guilty to one breach of the Control of Asbestos Regulations 2006. The Crown Court ordered Dairy Crest to pay 12,000 pounds in fines and 22,214 in costs. REWCO pleaded guilty to breaching two counts of the Control of Asbestos Regulations 2006. The Crown Court ordered REWCO to pay 8,000 pounds in costs and 13,786 pounds in costs.

A California federal judge on Aug. 23 granted preliminary approval of a $ 280,000 settlement to be paid by Kmart Corp. to end a class complaint by cashiers alleging that they were denied seats at the checkout stands (Colette Delbridge, et al. v. Kmart Corporation, No. 11-2575, N.D. Calif.; 2013 U.S. Dist. LEXIS 120377).

Lisa Garvey, who worked as a seasonal cashier in the Tulare Kmart store for about two months in 2010, filed a class action complaint in 2011 in the Alameda County, Calif., Superior Court against Kmart, alleging that it violated Section 14 of California Industrial Welfare Commission Wage Order 7-2001, which states in part that “employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

Garvey brought the suit under California’s Private Attorney General Act of 2004 (PAGA), which permits an “aggrieved employee” to institute an action “on behalf of himself or herself and other current or former employees” to collect civil penalties for a violation of any provision of the California Labor Code. Kmart removed the case to the U.S. District Court for the Northern District of California.

Garvey moved to certify the following class under Federal Rule of Civil Procedure 23(b)(3): “All persons who, during the applicable [one-year] statute of limitations, were employed as a Cashier for defendants at their Kmart retail stores (including Big Kmart and Kmart Supercenter) in the State of California and were not provided with a seat while working the front-end cash registers.” Her request for a statewide class was rejected. Instead, a class limited to cashiers at the Tulare store was approved.

The case proceeded to a bench trial. At trial, class counsel failed to prove that the nature of the work at the Tulare store reasonably permitted the seating modification urged by counsel. Later, an opportunity was granted to add further representatives for other stores. Sabrina Cline, who worked at a Kmart in Petalma, Calif., and Collette Delbridge, who worked at a Kmart in Redlands, Calif., were allowed to intervene in the action as putative class plaintiffs. A subsequent order dismissed Cline from the action and certified a class of cashiers from the Redlands store.

Settlement Motion

On Aug. 9, the parties filed a joint motion for preliminary approval of a settlement agreement covering all claims of the Redlands and Tulare employees.

Judge William Alsup granted the motion in his Aug. 23 order.

Under the terms of the settlement, Kmart will pay $ 280,000 to settle the action. The Tulare class members will receive a $ 100 settlement share on average, while the Redlands class members will receive a $ 150 settlement share on average. No class members will receive a settlement share under $ 25 or over $ 200. The settlement amount provides for $ 150,600 for class counsel. If the final approval of the settlement includes approval of costs in excess of that amount, the excess will be paid only from funds available from uncashed checks for settlement shares. The settlement amount also provides for a $ 1,000 incentive for Garvey and Delbridge.

Counsel

Charles A. Jones and Kelly McInerney of Jones Law Firm in Reno, Nev., James F. Clapp and Zachariah P. Dostart of Dostart, Clapp & Coveney in San Diego, Kevin J. McInerney of Reno and Matthew Righetti of Righetti Glugoski in San Francisco represent the cashiers.

Sidney Mabile filed suit in the Iberville Parish District Court against numerous companies whose conduct allegedly exposed him to asbestos.

Mabile’s exposure allegedly came from work at the Dow Chemical Co. plant in Plaquemine. Mabile claimed that the exposure caused him to contract mesothelioma, sources said.

The Dow facility in Plaquemine is the largest chemical plant in the petro-chemical heavy state, sources said. Mabile alleged that he worked on electrical components containing asbestos while at the Dow facility. Mabile also claimed exposure to asbestos-containing pipe insulation and transite walls.

As part of its Aug. 12 verdict, the jury apportioned fault to Dow as well as nonparties McDermott Shipyards and Sewart Seacraft Shipyard. The jury found in favor of Westgate LLC.

Awards, Experts

The jury’s awards consisted of $ 1.5 million for loss of enjoyment of life, $ 1.5 million for mental anguish, $ 336,000 for past medical expenses, $ 900,000 for future medical expenses and $ 211,000 for lost wages.

Mabile called Richard Lemen, Ph.D., an epidemiology and industrial hygiene expert, William Longo, Ph.D., a materials science expert; Richard Kradin, M.D., a pathologist and pulmonary medicine expert, and William Smythe, M.D., a surgeon. The defendants relied on the testimony of LeRoy Balzer, Ph.D., an expert in industrial hygiene and state of the art.

A source told Mealey Publications that the liability finding could leave Dow liable for up to a third of the $ 5.95 million verdict. Dow said it would file post-trial motions and seek to appeal any adverse judgment.

A chain of New York City grocery stores will pay $ 1.45 million in cash and gift cards to settle claims that it discriminated against female applicants, under a settlement agreement granted final approval on June 19 (Susan Duling, et al. v. Gristede’s Operating Corp., et al., No. 06-10197, S.D. N.Y.; 2013 U.S. Dist. LEXIS 87126).

doing business as Gristede’s, Gristede’s Food Inc., Gristede’s Delivery Service Inc., Gristede’s Foods NY Inc., Gristede’s NY LLC, NAMDOR Inc. and John Catsimatidis. The defendants own and operate Gristede’s supermarkets in New York City.

Anderson, who worked part-time as a cashier, alleged in the complaint filed in the U.S. District Court for the Southern District of New York disparate treatment and disparate impact under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). Anderson claimed that the defendants steered women who applied for work at Gristede’s supermarkets into part-time cashier jobs with little or no prospect for transfers or promotions into management-track positions. She also alleged that women were denied promotion in favor of men and were paid less than them.

Anderson later amended her complaint and added Susan Duling and Lakeya Sewer as named plaintiffs. Sewer brought an individual claim of discrimination based on her gender and pregnancy and a claim for interference with her rights under the Family and Medical Leave Act.

Class Certification

The plaintiffs moved for class certification on Jan. 30, 2009. On March 8, 2010, the District Court certified a class of all current and former female Gristede’s employees who worked for Gristede’s anytime between Nov. 2, 2004, and the date of final judgment.

In May 2012, the parties reached a settlement involving a settlement fund of $ 1.45 million ($ 500,000 in the form of fully redeemable Gristede’s store gift cards) and corrective measures. The District Court granted preliminary approval of the settlement on Nov. 15. Settlement notices were sent to all class members the following month. No class members objected to the terms, and only one class member asked to be excluded.

The plaintiffs moved for final certification of the settlement class and final approval of the settlement on March 1.

Final Certification

Granting final certification, Judge Laura Taylor Swain certified a class of all women who worked for Gristede’s for at least 90 days between Nov. 2, 2004, and Nov. 14, 2012. Settlement funds will be distributed based on the amount of time each class member worked for Gristede’s. Under the settlement, the claims administrator will determine each qualified class member’s proportionate share of the fund and proportion of monetary payment to gift cards with the goal of having the proportion similar for each person.

The settlement also provides corrective measures including the prohibition of steering female employees into certain positions, the posting of all job opening and job requirements, maintenance of job descriptions that do not discriminate against female employees, human resources oversight of hiring and promotion policies and practices, establishment of a monitoring mechanism and a dispute resolution mechanism to address and resolve any disputes that arise during the settlement term.

The National Football League is investigating allegations that teams may have broken the law at February’s scouting combine. In the wake of the Manti Te’o scandal, at least one team reportedly asked a potential draftee about his sexual orientation and relationship status.

Under federal employment law, it is unlawful to discriminate against any person because of that person’s race, national origin, religion, sex, age, and disability. Almost half the states in the country have additional laws prohibiting discrimination on the basis of sexual orientation. Thus, asking a job applicant a question specifically relating to one of those characteristics can violate the law.

At the NFL combine, teams routinely conduct interviews as part of the player assessment process. Colorado standout Nick Kasa told ESPN Radio in Denver that he was asked a number of inappropriate questions, including “Do you have a girlfriend? Are you married? Do you like girls?”

Since news of the questions broke, the NFL appears to be making all of the right moves to avoid a costly lawsuit. “Like all employers, our teams are expected to follow applicable federal, state and local employment laws,” NFL spokesman Greg Aiello said in a statement to NFL.com. “It is league policy to neither consider nor inquire about sexual orientation in the hiring process.

“In addition, there are specific protections in our Collective Bargaining Agreement with the players that prohibit discrimination against any player, including on the basis of sexual orientation. We will look into the report on the questioning of Nick Kasa at the Scouting Combine. Any team or employee that inquires about impermissible subjects or makes an employment decision based on such factors is subject to league discipline.”

The NFL is smart to investigate the situation quickly and thoroughly. The last thing the league needs is another legal scandal.

A New York federal judge on June 11 conditionally certified a class of restaurant chain tipped employees who claim that they were required to omit any overtime hours when entering their hours into the time-keeping system, finding that all the minimum requirements for certification were met (Michael Guttentag, et al. v. Ruby Tuesday, Inc., et al., No. 12-3041, S.D. N.Y.; 2013 U.S. Dist. LEXIS 82350).

Michael Guttentag and Steven Reeves were both employed by Ruby Tuesday Inc.

Guttentag worked as a food runner and bartender at a restaurant in New York. Reeves worked as a bartender at a Florida restaurant and a server in a New York restaurant. Guttentag and Reeves filed suit against Ruby Tuesday and some unnamed defendants, alleging that Ruby Tuesday has a nationwide policy requiring the tipped staff (bartenders, servers and food runners) to not enter any of their overtime hours into Ruby Tuesday’s time-keeping system. The plaintiffs seek all unpaid wages pursuant to the Fair Labor Standards Act (FLSA) and New York and Florida state laws.

Guttentag and Reeves moved for conditional certification of a nationwide class consisting of “[a]ll current and former Tipped Employees who have worked for Defendant within the statutory period covered by this Complaint and elect to opt-in to this action pursuant to the FLSA.”

Conditional Cert Granted

Judge Harold Baer Jr. granted the motion. “Here, the minimal factual burden to support a conditional certification has been met. For one, Plaintiffs have shown that Defendant maintains uniform job descriptions for all bartenders, servers, and food runners, as well as uniform task checklists for servers, bartenders, and managers, throughout its restaurants. But even more significant is the evidence that Defendant has a companywide policy of prohibiting overtime work, a centralized timekeeping system that allows Defendant to track each restaurant’s overtime record, and a uniform bonus policy that applies to all restaurant managers, which considers, among others, the restaurant’s labor costs. . . . Plaintiffs have also identified Defendant’s centralized system of staffing all of its restaurants using the same software program and updating the staffing plans on a quarterly basis at the level of its regional directors, rather than at the level of individual restaurants. . . . Lastly, the individual declarations and depositions of Plaintiffs and opt-in Plaintiffs cover the practice of ‘off the clock’ work in eight different restaurants located in four different states,” he wrote.

Judge Baer denied Ruby Tuesday’s principal argument, that the plaintiffs’ proposed nationwide class is too large and diverse. “Plaintiffs’ declarations and depositions cover at least eight store locations in four states. But more importantly, such evidence is complemented by both documentary evidence and depositions that support Plaintiffs’ contention that Defendant has a nationwide policy that at least is reticent to pay for overtime work by its employees, as well as a centralized staffing and labor budget management system. At this stage, nothing more is required,” he wrote.

Billy Mui filed a class complaint against HSBC in the U.S. District Court for the Southern District of New York in February 2012, alleging violations of the Fair Labor Standards Act and New York Labor Law. On May 9, 2012, Sharon Yuzary filed a class and collective action overtime lawsuit against HSBC in the same District Court.

On June 8, 2012, Daniel Hauer filed a collective action overtime suit against HSBC in the U.S. District Court for the Southern District of Florida. On June 20, Yuzary filed an amended complaint and added plaintiffs Jon Racow, Henry Hu, Mina Dimetry and Teron Haughton and Federal Rule of Civil Procedure 23 class claims under New Jersey and Connecticut law.

In June 2012, the plaintiffs in the three complaints agreed to consolidate their claims to pool their resources and preserve judicial resources. The parties then participated in mediation and ultimately reached a settlement agreement. They moved for preliminary approval of the agreement on Nov. 26.

Preliminary Approval Granted

Granting preliminary approval, Judge Paul G. Gardephe opined that “[t]he Court concludes that the proposed Settlement Agreement is within the range of possible final settlement approval, such that notice to the class is appropriate.”

Under the terms of the settlement, a common fund of $ 15,625,000 will be created to cover class members’ awards, service payments, attorney fees and costs and the settlement administrator’s fees. HSBC also agreed to pay employer payroll taxes. Two groups of HSBC employees will comprise the class. The first, “Rule 23 Classes” consists of four subclasses: a New York subclass, a California subclass, a Connecticut subclass and a New Jersey subclass. The second class, “FLSA Class Members,” consists of individuals employed in covered positions by HSBC from May 9, 2009, through Nov. 15, 2012.

The plaintiffs’ counsel may apply for attorney fees totaling up to one-third of the settlement fund. Under the terms of the settlement, they are also entitled to seek reimbursement of their litigation costs and expenses in an amount not to exceed $ 50,000.